Unlike other misdemeanors, driving under the influence charges cannot be shunted to a diversion program instead of prosecution, the Fourth District Court of Appeal, Division Two, ruled July 28 in a split ruling with a concurring opinion.
A 2020 change to California law, through AB 3234, allows most misdemeanor charges to be diverted away from prosecution, and into a program or a condition that the judge thinks is appropriate. At the end of the program, the judge can dismiss the misdemeanor charge. The judge does not have to consider the prosecutor’s objections when they divert a charge.
A DUI charge cannot be diverted under the new law, because of an older statute, Vehicle Code 23640 the Court of Appeal ruled in a published opinion.
Vehicle Code 23640, chartered in 1998, prevents a judge from suspending or staying any proceedings related to a DUI charge.
“As discussed, the statute can reasonably be harmonized with Vehicle Code Section 23640 to prohibit diversion for misdemeanor DUI charges. And, given that the record does not clearly and unequivocally show that the Legislature intended to partially repeal Vehicle Code Section 23640 when it enacted Penal Code Section 1001.95, this prohibits us from finding an implied, partial repeal of Vehicle Code Section 23640 in the enactment of Penal Code Section 1001.95,” the opinion, written by Acting Presiding Justice Richard Fields, says.
Case background
The appellate opinion laid out the background. Jessica Ortiz was charged with a DUI in July, 2020. She pleaded not guilty to the charges, and has not been convicted of driving under the influence. In February, 2021, Riverside Superior Court granted her request to be placed in the new misdemeanor diversion program enacted by the change in law. Prosecutors objected, and ultimately appealed.
The court will now have to continue hearings under Ortiz’s DUI charge.
Dissenting opinion
Justice Frank Menetrez dissented. He argued that legislators were continually informed that the bill would allow DUIs charges to be diverted, and that they expected the 1998 law to be overwritten by AB 2324.
The Orange County District Attorney and the California District Attorneys Association told the state assembly that AB 3234 would repeal Vehicle Code 23640, and allow misdemeanor charges to be diverted.
During floor debate Aug. 24, 2020, an Assembly member said the bill allowed for DUI charges to be diverted, according to Menetrez.
The Assembly then voted for the bill.
Similar objections were raised during debate in the Senate, and some representatives opposed the bill because they believed it would allow DUI charge diversions, Menetrez wrote.
“California’s district attorneys told the Legislature that Section 1001.95 would authorize diversion for DUIs and therefore should not be enacted. The Legislature enacted it anyway. Having lost in the Legislature, the district attorneys concluded that section 1001.95 does not authorize diversion for DUIs after all, and they turned to the courts to give them the victory they were unable to secure in the Legislature,” Menetrez wrote.
Concurring opinion
Justice Michael Raphael agreed that the 1998 law excluded DUI charges from new diversion programs, but argued for a different principle to reach that conclusion. A specific statement should trump a general statement in law, Raphael said. Because the 1998 law specifically excluded DUI proceedings from being stayed, that law trumps the vague 2000 change, which did not mention DUI proceedings.
“And we should apply that canon, as our Supreme Court often has, because it provides the Legislature with a default rule that indicates that if it wishes to partially repeal a statute, it had best make that intention express through the words of the statute,” Raphael wrote.
Case information
District Attorney Michael Hestrin and Deputy District Attorney Emily Hanks appealed.
Public Defender Steven Harmon and Deputy Public Defender Jason Cox represented Ortiz.
Donald Bartell, Lara Gressley and Michael Donaldson of Bartell, Hensel & Gressley, represented California DUI Lawyers Association as amicus curiae on behalf of Ortiz.
Riverside Superior Judge Dean Benjamini presided.
Appellate case number E077594.
Superior Court case number APR12100013.
Read the ruling here.
